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ACHPR African Commission on Human and Peoples' Rights Human Hights our Collective Responsibility in the State, the burden of proof will shift to 'the State claiming non-exhaustion and it has an obligation to prove that domestic remedies remain to be exhausted and that they are effective's". By failing to engage the Commission on the allegations made by the Complainants, the Respondent State fails to discharge this onus. It would be an affront to justice to reward the State for its silence in this case while penalising it for its admissions in previous Communications. 61. As such, in the absence of any concrete steps on the part of the State to bring the victim to court, or to allow him access to his legal representatives two years after his arrest and detention, and more than one year after being seized of the matter, the African Commission is persuaded to conclude that domestic remedies, even if available, are not effective nor sufficient. 62. Accordingly, the Commission considers that the i,Complaif1:ants have constructively exhausted domestic remedies and are thus:'in compliance with Article 56(5) of the African Charter: .. f. Submission Charter within a reasonable period (Article 56(6) of the African 63. Article 56(6) of the African Charter requires that a Communication must be submitted ' ...within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter'. The Commission rec~lls that the African Charter does not provide a fixed period for reasonableness and instead determines this on a case-by-case basis. In practice, the Commission adopts the international standard of a six-month delimitation within which a <;ilommu~iCationmay be reasonably submitted from the domestic level. The reasonableness of submission beyond this period is dependent on the circumstances of the case. 64. Ordinarily, the reasonableness period runs from the moment local remedies are exhausted. However, where remedies are unavailable, the period runs from the date on which the alleged violation(s) occurred or when the applicant became aware of the act or its effects. If the Complainant attempts to exhaust an apparently available remedy and only subsequently becomes aware that the0~\'I~H'E1"Jo circumstances that render the remedy ineffective or insufficient, thrp6tIQdl:fUI1S I,~ 27' See Liesbeth Zegveld and Mussie Ephrem v. Eritrea, supra note 3, para 36. (S I/i/ ~rl.( "~ ~ z ~ <1 o ~--L <~ \ u~ I .' 17. ~-i is en <\ ~ 0 ",u-\.lJ'>, <.t" The African Commission ori'Mb ~a~Peopl~ 31 Bijilo Annex Layout, Kombo Nort~ istri~(OX~~I:.~e,~~1 Phone: (220) 230 \ 6t ~8x:~i&j .~ 11JY',E ETO.,. ,"'Email: au- baruun . lJLiEoUnlO!Y.Org ';hC>V t4J~5~()~

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Communication 704/18 - Berhane Abrehe Kidane (represented by Solomon Weldekirstos and Eritrean Law Society) v. Eritrea

ACHPR Decision

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Type of Document

Decision

Keywords

Arbitrary Arrest and Detention
Civil and Political Rights
Cruel and Degrading Treatment
Detention Facilities/Conditions
Equality
Equality Before the Law
Freedom of Expression / Digital Rights
Freedom of Movement
Freedom of Opinion
Participation in Government
Personal Liberty
Right to be Heard before a Competent Court
Right to Health
Right to Information
Right to Life
Torture and Ill Treatment

Case Head Notes: In 2012, the victim, in his capacity as Minister of Internal Development and Finance, made a proposal which advocated for a new constitutional order. He also stated that his ministry was being undermined by design of the President. The President responded by dismissing the victim from his ministerial position. After his dismissal, the victim wrote a book, which blamed the President for the political crisis in the Respondent State. In 2018, a few days after the book was published, security agents of the Respondent State took the victim to an undisclosed location. His location remains unknown, and he is being held incommunicado, without coming before a court of law, despite his serious health issues. The Commission found a violation of Articles 2 and 3 stating that, although the victim was from the ruling party, the victim was effectively an internal opponent, and deserves the same protection as any other political opponent. Accordingly, the victim's differential treatment, on the basis of his political opinion, violated Articles 2 and 3. Acknowledging that a violation of Article 4 can occur without a death occurring, and that the Respondent State has a heightened responsibility to protect the health of individuals who are detained, the Commission found a violation of Articles 4 and 16 because the conditions of the victim's detention, and the impossibility of pursuing appropriate treatment abroad, were likely to lead to a serious deterioration in the victim's health, and therefore jeopordize the victim's life. The Commission found a violation of Article 5 noting that the lengthy detention, in the conditions referred to, without contact with the outside world, makes it reasonable to consider that it could have caused severe psychological suffering to the victim, and that such a long detention, in itself, constitutes a form of punishment that also meets the second requirement of a torture violation. The Commission found a violation of Article 6 stating that incommunicado detention is incompatible with the requirements of lawful detention, and further that arrest and detention in an unknown location is contrary to Article 6. The Commission found a violation of Article 7, stating that incommunicado detention constitutes the most primary form of the violation of the right to have one's case heard. Noting an absence of a response from the Respondent State, the Commission stated that it must conclude that the detention of the victim, following the publication of their book, violated Article 9 because their expression of opinion resulted in an unjustified detention. The Commission found a violation of Article 12, citing the Respondent State's arbitrary detention of the victim, and also the way they limited the victim's movement in and out of the country, even before his detention. On account of the other violations, the Commission also found a violation of Article 1. The Commission found no violation of Article 13 because the Complainants did not demonstrate to what extent the victim was participating in the government through the publication of his book, and how his detention jeopordized that participation. The Commission called on the Respondent State to immediately release the victim, and ensure full due process rights, if the Respondent State desired further legal action against him. They also urged the Respondent State to facilitate immediate access to medical treatment of the victim's preference, to ensure adequate payment to the victim, and to report on the steps it has taken to implement the Commission's recommendations.

Country

Eritrea

Outcome: Decided on Merits

Year Decided: Mar 8, 2024

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 9: Right to Receive Information and Free Expression
ACHPR 1: General Obligations
ACHPR 12: Right to Freedom of Movement
ACHPR 12:2: Right to leave any country including his own, and to return to his country
ACHPR 12.1: Right to freedom of movement and residence within borders of State of legal residence
ACHPR 13: Right to Participate in Government
ACHPR 13.1: Right to participate freely in government
ACHPR 16: Right to Health
ACHPR 16.1: Right to Enjoy the Best Attainable State of Physical and Mental Health
ACHPR 4: Right to Life and Integrity
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest
ACHPR 9.1: Right to Receive Information

Rights Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 9: Right to Receive Information and Free Expression
ACHPR 1: General Obligations
ACHPR 12: Right to Freedom of Movement
ACHPR 12:2: Right to leave any country including his own, and to return to his country
ACHPR 12.1: Right to freedom of movement and residence within borders of State of legal residence
ACHPR 16: Right to Health
ACHPR 16.1: Right to Enjoy the Best Attainable State of Physical and Mental Health
ACHPR 2: Freedom from Discrimination
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 4: Right to Life and Integrity
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest
ACHPR 9.2: Right to Express and Disseminate Opinions Within the law

Rights Not Violated (ACHPR Provisions)

ACHPR 13: Right to Participate in Government
ACHPR 13.1: Right to participate freely in government

Duration of Procedure

Oct 12, 2018 ~ Mar 8, 2024

Country Geolocation

Latitude: 15.179384

Longitude: 39.782334

Country Geolocation (linked ACHPR Decision): Eritrea

Primary Documents

Berhane Abrehe Kidane v Eritrea.pdf
English
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African Human Rights CLA 2.0

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Communication 704/18 - Berhane Abrehe Kidane (represented by Solomon Weldekirstos and Eritrean Law Society) v. Eritrea

Primary Documents

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